R. v. C.L.D. Date:, 2017 BCPC 88

Citation: R. v. C.L.D. Date: 20170320 2017 BCPC 88 File No: 36202 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.L.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Patola Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Alberni , B.C. Dates of Hearing: February 15, 23, March 8, 13, 16, 2017 Date of Judgment: March 20, 2017

1. The Application [1] On March 18, 2015, Mr. D. was sentenced to 154 days’ jail (less credit for time served) for assaulting his intimate partner, Ms.H. He is bound by a probation order, which took effect on his release from custody on July 18, 2015 and will expire on July 18, 2017(about four months from today). One of the conditions of his probation order forbids him to have any contact, directly or indirectly, withMs. H. Mr. D. applies to vary the probation order to rescind that condition. Mr. Patola, for the Crown, opposes the application. 2. The Process [2] Mr. Movassaghi, for Mr.

D., filed a notice of application, seeking an order to amend the probation order. The notice ofapplication did not state the factual grounds for the application and provided no outline of the legal principles upon which Mr. D. relies. No supporting affidavits were filed. [3] The application first came on for hearing in February. Mr. Patola took the position that the court is without jurisdiction tomake the order sought, and that I should decide the jurisdictional issue as a preliminary point of law. Mr. Patola provided me withcopies of two authorities, R. v. Boylan (SK CA), [1979] 3 WWR 435 and R. v.

P.A.H. 1999 BCCA 194, and Mr.Movassaghi provided me with one, R. v. Vickers 2015 ABCA 211, [2015] AJ No. 684. I heard argument on the jurisdictional questionand reserved judgment. After some considerable reflection, I decided that the question should not be decided in an evidentiary vacuum. The application came back on for hearing on March 8. Ms. H. was in attendance, but Mr. D. was not. I directed Mr. Movassaghi toprovide Mr. Patola with a

summary of the evidence to be tendered and an outline of his legal argument. I told Mr. Patola that I wouldfind it very helpful if Mr. D.’s probation officer would attend court and provide me with his or her views. I adjourned the application fora week to allow counsel time to comply with those directions. [4] That adjournment caused some inconvenience to Ms. H., who lives in [omitted for publication]. [omitted for publication] is aremote First Nations community on the west coast of Vancouver Island.

To travel from [omitted for publication] to Port Alberni, onetakes a water taxi to Tofino (about 40 minutes) and then drives about 130 kilometres. The journey takes several hours. [5] The application came back on for hearing on March 16. Neither Mr. D. nor his probation officer attended. Ms. H. did. Mr.Movassaghi had provided Mr. Patola with an eight-line

summary of Ms. H.’s evidence, and informed us that Ms. H. would be his onlywitness. He had delivered no outline of argument, and advised us that he relied only on Vickers. Mr. Patola said that the applicationshould not be heard unless and until Mr. Movassaghi provided an affidavit from Ms. H. and an outline of his argument. I was, and am,sympathetic to Mr. Patola’s point of view, but I directed that the application proceed because I did not think it fair to require Ms. H. toattend court a third time. [6] Ms. H.’s direct evidence was brief. She is a member of the [omitted for publication] First Nation. Mr.

D. is a member of the[omitted for publication] First Nation, whose traditional territory is in and around Port Alberni. Ms. H. and Mr. D. have had an intimaterelationship for about 12 years, and have a 10 year-old son. Each of them has difficulties with alcohol. She has received counselling,arranged by her First Nation, for trauma resulting from childhood sexual abuse and abandonment. She does not fear Mr. D., and wishesto have contact with him. She has made arrangements for Mr.

D., her son and herself to attend together at a residential treatment andcounselling centre sponsored and managed by British Columbia First Nations. If I amend Mr. D.’s probation order, as he asks me to do,the family will go to the treatment centre on April 19, 2017. [7] During Ms. H.’s cross-examination, Mr. Patola established that: (

i) she lied to the police on several occasions about herinteractions with Mr. D.; (ii) she has been in Mr. D.’s company, in breach of his probation order, on three separate occasions since hisrelease from custody on July 18, 2015; and (iii) the two of them consumed alcohol on those occasions, resulting in complaints to thepolice and charges of breach of probation against Mr. D. Mr. D. also consumed illicit drugs during his visits to her. [8] Mr. Patola informed me that, as a result of his visits to Ms. H. over the past two years, Mr.

D. has been convicted of severalbreaches of probation, for which jail sentences were imposed. He was most recently released from custody for those offences onFebruary 22, 2017. Mr. D. has a lengthy criminal record, including 27 convictions for violent offences and 16 convictions for breachesof court orders. [9] There is no other evidence on the application. In particular, Mr. D.’s probation officer did not attend court, as I requested. Iwas given no information about counselling or treatment services which may have been offered to Mr. D. during his probation period, orabout his response to such opportunities.

I was told nothing about plans for the family after their attendance at the treatment centre, orabout supports for them in the community. 3. The Statute [10]

Section 732.1(2) of the Criminal Code requires certain conditions to be included in all probation orders. They are referred to bycounsel (although not in the Criminal Code itself) as “mandatory conditions”. One of the “mandatory conditions” was added to section732.1(2) by an amendment which came into force on September 19, 2014:

An Act to Amend the Criminal Code and the Corrections andConditional Release Act SC 2014, c 21,

section 2. The new “mandatory condition” then introduced is: (a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain fromgoing to any place specified in the order, except in accordance with the conditions specified in the order that the court considersnecessary, unless (

i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent orguardian, or any other person who has the lawful care or charge of them, gives their consent, or (ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition.

The condition is ambiguous. Simply read grammatically, it might mean: a. the court must impose a no-contact condition unless the victim consents to the omission of such a condition; or b. the court must impose a condition, and that condition must prohibit contact with the victim without the victim’s consent. Mr. Patola contends for the former construction, and I will address the issues on the assumption that he is correct. [ 11 ]

Section 732.1(1) of the Criminal Code defines “optional conditions” of probation orders to be those referred to in sections 732.1(3) and 732.1(4) . The “mandatory conditions” set out in

section 732.2 are not among those referred to in sections 732.1(3) or 732.1(4) , and so are not “optional conditions”. [ 12 ]

Section 732.2(3) of the Criminal Code empowers the court to amend the “optional conditions” of a probation order. Neither

section 732.2 nor any other

section of the Criminal Code expressly authorizes the court to amend any of the “mandatory conditions” of a probation order. The Criminal Code is silent on that subject. [ 13 ]

Section 732.2(3) (

c) of the Criminal Code empowers the court to “… decrease the period for which the probation order is to remain in force …”. 4. The Jurisdictional Issue [ 14 ] Mr. Patola says that I have no jurisdiction to grant the order sought. His submission is founded upon two propositions, which, although related, are distinct: a. Parliament has expressly conferred on the court the authority to amend the “optional conditions” of a probation order, but has not expressly conferred authority to amend the “mandatory conditions”.

The necessary inference is that Parliament did not intend that the court should have the authority to amend the “mandatory conditions”. b. The Provincial Court of British Columbia is a statutory court, and has no jurisdiction to do anything unless a statute expressly confers that jurisdiction. a. The Authorities Referred to by Counsel [ 15 ] I do not agree with Mr. Movassaghi’s submission that the jurisdictional issue was addressed or decided in Vickers . It is mentioned nowhere in the judgment of the Alberta Court of Appeal.

As I read Justice Watson’s reasons, he was simply of the view that the matter should not be raised for the first time in the Court of Appeal, and should be referred to the trial court for a decision which might be the subject of a later appeal. [ 16 ] In P.A.H. , the Court of Appeal said that a sentencing judge erred in ordering, on his own motion, a review of probation conditions upon completion of the custodial portion of a sentence.

I am not the sentencing judge in this case, have not been asked to do that, and have no intention of doing so. [ 17 ] In Boylan @ paragraph 23 , the Saskatchewan Court of Appeal said: In perusing the various judgments to which I have referred, in which it has been held that the pertinent provision is directory and not mandatory, the decisions appear to have been based upon the conclusion that to give effect to the plain language of the legislation would effect an unsatisfactory result.

It is with every deference I suggest that to interpret the enactment on that principle is wrong when the language is clear and unambiguous, and the enactment is not in conflict with other provisions of the Criminal Code . As will become apparent, I consider that to be an incomplete statement of the governing principles of statutory

interpretation. b. Construing the Statute [ 18 ] Mr. Patola’s first proposition invokes the maxim expressio unius est exclusio alterius . In Re Lowe v. Darling & Son [1906] 2 KB 772 , Lord Justice Farwell said @ page 785 (underlining added): The generality of the maxim 'Expressum facit cessare tacitum' which was relied on, renders caution necessary in its application. It is not enough that the express and the tacit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist. In Colquhoun v.

Brooks (19 Q.B.C. 400 at p. 406) Wills J. says: "I may observe that the method of construction summarised in the maxim " Expressio unius exclusio ulterius " is one that certainly requires to be watched ... The failure to make the " expressio " complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind. Lopes L.J. in the Court of Appeal ( 21 Q.B.D. 52 at p. 65) says: 'The maxim " Expressio in unius exclusio alterius " has been pressed upon us.

I agree with what is said in the Court below by Wills J. about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice . [ 19 ] Lord Justice Farwell’s observations have been adopted in many Canadian judgments. The discussion of the subject in Dorval v.

Dorval 2006 SKCA 21 ; 2006 SJ No. 94 ; 264 DLR (4 th ) 512 @ paragraphs 10 - 20 is particularly germane to the issue before me. In that case, the judge at first instance made a temporary order, varying a previous custody order, and directing that the child reside with the father pending trial of custody and access issues. The mother appealed, on the grounds that the governing legislation made no provision for such an order, and that the court had no jurisdiction to make it in the absence of express statutory authority. At paragraphs 10 - 16, Justice Cameron, speaking for the court, said:

… there is no provision in

section 17 expressly empowering the Court to make an interim order varying or suspending an existingcustody/access order. That is so even though each of

section 15 (empowering the Court to make child and spousal support orders) andsection 16 (empowering the Court to make child custody/access orders), contain express provisions empowering the Court to makeinterim orders. This may be seen to suggest that no such power exists under

section 17, for it suggests that Parliament, by expresslyincluding such power in each of sections 15 and 16, impliedly excluded it from

section 17. The suggestion is grounded in the guide tostatutory

interpretation known as expressio unius est exclusio alterius: to express one thing is to exclude another. As explained in Sullivan and Driedger on the Construction of Statutes, 4th ed. by Ruth Sullivan (Markham: Butterworths Canada Ltd.,2002): An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thingwithin its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention thething becomes grounds for inferring that it was deliberately excluded.

Although there is no express exclusion, exclusion is implied. Theforce of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason foranticipating express reference to a thing, the more telling the silence of the legislature. [at pp. 186-87] With this in mind, the express reference to the thing in issue in this case (the power to make interim orders) in each of sections 15 and 16of the Act, may fairly be said to give rise to an expectation of express reference in

section 17. This is so because the latter fails to followthe pattern of expression of the former. And what this suggests is that Parliament implicitly intended to exclude the power to makeinterim orders when enacting

section 17. Still, the maxim expressio unius est exclusio alterius is only an aid to statutory construction. As Laskin C.J. noted in Jones v. A.G. ofNew Brunswick, (SCC), [1975] 2 S.C.R. 182, "This maxim provides at the most merely a guide to

interpretation; itdoes not pre-ordain conclusions." And its application calls for a considerable measure of caution lest too much be made of it, a pointdeveloped in detail in P.-A. Côté, The

Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000) at pp. 337-339. AsCôté observes at p. 337: A contrario [reasoning], especially in the form expressio unius est exclusio alterius, is widely used. But of all the interpretivearguments, it is among those which must be used with the utmost caution. The courts have often declared it an unreliable tool, and, aswe shall see, it is frequently rejected. In significant part, these observations are grounded in what was said of expressio unius in Turgeon v.

Dominion Bank (SCC), [1930] S.C.R. 67, per Newcombe J. at pp. 70-71, and Alliance des Professeurs Catholiques de Montréal v. Québec LabourRelations Board, (SCC), [1953] 2 S.C.R. 140, per Rinfret C.J. at pp. 154, citing Farwell L.J. in Re Lowe v. Darling &Son, [1906] 2 K.B. 772. What was there said of this guide to

interpretation is that caution is required in its application and that, while itcan be a valuable servant, it can be a dangerous master to follow for a number of reasons. First, much depends on context, including theparticular subject-matter. Second, express reference to a matter may have been unnecessary and been made only out of abundant caution. Third, the lack of express reference may have been the product of inadvertence. Fourth, the express and the tacit, incongruous as theymay be, must still be such as to make it clear they were not intended to coexist.

And, finally, the indiscriminate application of expressiounius to the particular subject-matter may lead to inconsistency or injustice. In the light of considerations such as these, Côté, goes on to observe at p. 339: Since it is only a guide to the legislature's intent, a contrario reasoning should certainly be set aside if other indications reveal that itsconsequences go against the statute's purpose, are manifestly absurd, or lead to incoherence and injustice. [footnotes omitted].

Having regard for these constraints and the subject matter at hand, it becomes difficult to apply the maxim expressio unius est exclusioalterius to the construction of those provisions of

section 17 relating to child custody and access, namely those of subsections 17(1)(b),(5) and (9). Applying the maxim would serve to blunt the purpose of subsection 17(1)(

b) by blunting the ability of the Court of Queen'sBench to effectively fulfil its function of protecting the interests of those for whose benefit these provisions were enacted. Thebeneficiaries of these provisions are children - the children of divorced parents - and the Court is charged with the responsibility ofprotecting their interests in inherently fluid situations, situations which may change from time to time to the detriment of those interests. As I explain below, exactly the same analysis may be applied to the jurisdictional issue in this case.

In particular, contact betweenspouses during a probation period in a spousal assault case is, of necessity, a fluid situation, the management of which is of criticalimportance to children of the victim and the offender. [20] In Rizzo v. Rizzo Shoes Ltd (SCC), [1998] 1 SCR 27, the court was called upon to decide whether statutoryseverance is payable to employees when the employer makes an assignment in bankruptcy. The applicable legislation provided thatstatutory severance was payable on termination by the employer, but was silent on the question whether it would be payable on anassignment in bankruptcy.

The trustee in bankruptcy relied on the expressio unius principle in opposition to the employees’ claim forstatutory severance. The court concluded that statutory severance was payable on bankruptcy. Justice Iacobucci said @ paragraph 27(underlining added): It is a well established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremelyunreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of thelegislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to

interpretationswhich defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). [21] It will be observed that the decisions in Dorval and Rizzo were not founded on an assertion of inherent jurisdiction. On thecontrary, the conclusion in each case was that, when well-established principles of statutory

interpretation were applied, the statuteconferred jurisdiction by implication.

[22] Applying the same principles to this case, I conclude that, at least in spousal assault cases, the power to amend no-contactprovisions of probation orders is necessarily implicit in the Criminal Code. [23] In Rizzo, Justice Iacobucci said that an

interpretation of a statute may be rejected if it leads to ridiculous consequences, isextremely unreasonable or inequitable, is illogical or incoherent or is incompatible with the object of the legislative enactment. All ofthose may be said of the position advanced by the Crown on this application. [24] Exercising the authority conferred by

section 732.2(3)(c), I could, today, terminate Mr. D.’s probation order, leaving him underno constraints, but, if Mr. Patola is right, I cannot amend it in such a way as to keep him subject to constraints, but less onerousconstraints than those initially imposed. Such an outcome would be absurd, illogical and incompatible with the objects of the CriminalCode. The point is well-illustrated by the circumstances of this case. I could terminate Mr. D.’s probation order today. That wouldleave him free to attend the treatment program proposed by Ms. H., or not, as he chose, and to have contact with Ms.

H., without controlsor sanctions, as and when he chose. However, if Mr. Patola is right, I cannot vary his probation order to require him to attend thetreatment program in the company of Ms. H. and his son. Such a result is, in my view, both absurd and incompatible with the objectivesof the Criminal Code. [25] Almost by definition, a spousal assault is a symptom of a dysfunctional family dynamic.

There is a strong public interest inresolving the underlying family issues, promoting reconciliation and family reunification where possible, and establishing a viablemodus vivendi where reconciliation and family reunification are not achievable. That is particularly so when the offender and the victimhave young children. The process leading to those desirable outcomes takes time. Many charges of spousal assault are resolved by anearly guilty plea, which is often a useful first step toward reconciliation.

At that stage, it is often necessary to separate the offender andthe victim, sometimes because the victim is unable, for emotional or practical reasons, to separate herself from the offender. As therelationship evolves and the causes underlying the spousal assault are addressed through services offered by a probation officer, it oftenbecomes feasible and desirable to bring the victim and the offender together under safe conditions to allow the reconciliation process tobegin. All of this requires ongoing supervision and assistance from probation officers and the court.

It is rarely possible to predict at theinception of that process how it will evolve, and at what pace. Successful supervision and management of the process depend criticallyon the ability to make adjustments to the probation regime as the process unfolds. [26] Mr. Patola said to me that promoting family reconciliation and reunification are not goals or objectives of sentencing in criminalcases. He points out that they are not among the objectives enumerated in sections 718ff of the Criminal Code. I disagree. At thecentre of this case stands a 10 year old boy. His parents are alcoholics.

He lives in a community which suffers grievously from theintergenerational effects of residential schools. Among those effects are addiction, family violence, dysfunctional extended families andabsence of community supports. All of those are epidemic in [omitted for publication], largely because many children from thatcommunity were sent to the Port Alberni Indian Residential School, one of the last in Canada to close (which it did in 1973). In 1995, aformer supervisor at the school was sentenced to 11 years’ jail for abusing the children in his care.

Neither the father of this 10 year oldboy nor the father’s probation officer came to court to speak for him on this application. The probation officer, apparently, has beenunable or unwilling to persuade Mr. D. to attend treatment for his addiction. Instead, the assistance offered by the Crown has been toarrest, charge and jail him for drinking with Ms. H., no doubt in the belief that an alcoholic can be deterred from drinking by a series ofjail sentences.

The boy’s mother has taken the initiative to register the family for a residential treatment centre, and asks for theassistance of the court to make that possible. Mr. Patola says that the amelioration of that tragic narrative is not among the objectives ofthe Criminal Code. If I were to accept that submission, I would fail in my duty to Mr. D.’s son and to the indigenous people of Canada. [27] If Mr. Patola is right, the victim of a spousal assault has one, and only one, opportunity to consent to contact with the offenderduring the period of probation.

If the victim gives that consent at the sentencing hearing, the court need not impose a no-contact term. Ifshe does not, she will have no second opportunity to consent. No one with a working knowledge of spousal assault cases would think ituseful or wise to offer the victim a one-time, take-it-or-leave-it opportunity at an early stage of the process to consent to ongoing contactwith the offender. Victims face many pressures and stresses throughout the process, and do not always make wise or well-informeddecisions in the early stages.

To put the victim in a position where she must either consent immediately to contact (which she may fear)or lose the opportunity for contact for a period of years would be to increase the pressure on the victim at a time when she is mostvulnerable. It serves all interests to allow the victim the opportunity to say, at the time of sentencing: “I don’t want any contact now. Let’s wait and see how this develops.

I will let you know when I am ready.” [28] For those reasons, I conclude that jurisdiction to vary a no-contact provision in a spousal assault case is conferred by theCriminal Code, construed according to the principles stated in Dorval and Rizzo. Different considerations may arise in relation to otherclasses of offences, and I confine my observations, in this judgment, to cases of spousal assault. If I am correct in that conclusion, Mr.Patola’s second point does not arise. c. Implied Jurisdiction of a Statutory Court [29] The governing principle in relation to Mr.

Patola’s second point was stated by Justice Bastarache in ATCO Pipelines Ltd. v.Alberta (Energy & Utilities Board) 2006 SCC 4 , [2006] 1 SCR 140 @ paragraphs 50 - 51. … the Board's discretion is to be exercised within the confines of the statutory regime and principles generally applicable to regulatorymatters, for which the legislature is assumed to have had regard in passing that legislation …. In the same vein, it is useful to refer to thefollowing passage from Bell Canada v.

Canada (Canadian Radio-Television and Telecommunications Commission), (SCC), [1989] 1 S.C.R. 1722, at p. 1756: The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessaryimplication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powersof such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technicalinterpretations of enabling statutes.

The mandate of this Court is to determine and apply the intention of the legislature … without crossing the line between judicial

interpretation and legislative drafting …. That being said, this rule allows for the application of the "doctrine of jurisdiction bynecessary implication"; the powers conferred by an enabling statute are construed to include not only those expressly granted but also, byimplication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutoryregime created by the legislature ….

Canadian courts have in the past applied the doctrine to ensure that administrative bodies have thenecessary jurisdiction to accomplish their statutory mandate: When legislation attempts to create a comprehensive regulatory framework, the tribunal must have the powers which by practicalnecessity and necessary implication flow from the regulatory authority explicitly conferred upon it. I refer also to R v. Cunningham 2010 SCC 10 , [2010] 1 SCR 331 @ paragraphs 18 - 20, and to R v.

Pewapisconias 2016 SKQB310; [2016] SJ No. 543. [30] It will be observed that jurisdiction by necessary implication arises from an analysis similar to that found in Dorval and Rizzo. In Re Lowe and Darling, Lord Justice Farwell said that the exclusio principle should not apply where its application would lead toinconsistency or injustice. In Rizzo, Justice Iacobucci said that an

interpretation of a statute should be rejected if it leads to consequenceswhich defeat the purpose of a statute or are extremely unreasonable or inequitable. In ATCO, Justice Bastarache said that, where astatute is silent on a question of jurisdiction, the court must consider whether the jurisdiction flows by “… practical necessity andnecessary implication …” from the statutory scheme. In R v. Bland 2016 YKSC 61; [2016] YJ No. 150 @ paragraph 17, Justice Gower,paraphrasing Justice Arbour in R v.

Wust 2000 SCC 18 , [2000] 1 SCR 455, said that, when considering an issue of impliedjurisdiction, the court may infer that “… Parliament must not have intended to perpetrate an injustice or an absurdity …”. None of thoseobservations suggest that there is any applicable limit on the legislative authority of Parliament, nor that the courts may decline to giveeffect to an enactment because it is unjust, absurd or illogical. Parliament may act in those ways if it chooses.

However, in attempting tointerpret a statute which is silent or ambiguous on a jurisdictional question, the courts should assume that Parliament did not intendillogical, absurd or unjust results. [31] It follows, in my view, that the power to amend no contact provisions of probation orders in spousal assault cases is a “practicalnecessity” - as a practical matter, there is no other way to manage a probation program in most spousal assault cases if we are to achievethe objectives of reconciliation and family reunification. d.

Conclusion on the Jurisdictional Issue [32] I conclude that, in spousal assault cases, the statute implicitly confers jurisdiction to amend a no-contact provision of aprobation order, at least where the victim consents to the variation. 5. The Merits of the Application [33] Whatever I do now, Mr. D. will cease to be constrained by his probation order on July 18, 2017. If I refuse this application, hewill not attend the treatment program arranged by Ms. H. Given his history, it is unlikely that he will attend any other treatment programduring that interval.

Nothing will be done to address his issues of violence and addiction before the end of his probation period. He willthen resume cohabitation with Ms. H. and his son, as he will be entitled to do. The results for his son will be very unfortunate. If I grantthis application, there is at least a chance that he will attend the treatment program and derive some benefit from it. I find that an easychoice. 6. Disposition [34] Mr.

D.’s probation order will be amended by deleting the existing no-contact provision and replacing it with the following: You must attend, participate in, and successfully complete any counselling program to which you are referred by your probation officer,including a residential counselling and treatment program if you are referred to one. You must have no contact, directly or indirectly,with [Ms. H.], except while in attendance at a residential counselling program approved by your probation officer. March 20, 2017 T. Gouge, PCJ